A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE. 

ANNOUNCEMENT: Join us Wednesday, August 16, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.

JUDICIAL: Includes environmental, CWA, urb & ag, estate planning, and taxation issues.

In ASARCO LLC, a Delaware corporation, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, a Delaware corporation, Defendant-Appellee, No. 14-35723, 2017 WL 3427708 (9^th Cir. August 10, 2017), issue on appeal was whether a 1998 settlement agreement under the Resource Conservation and Recovery Act (RCRA) between plaintiff and the United States triggered three-year statute of limitations for plaintiff to bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contribution action. District court ruled plaintiff’s claim was time-barred because it sued in 2012—“well beyond the three-year statute of limitations under CERCLA.” Appellate court noted the relevant CERCLA statute “allows persons who have taken actions to clean up hazardous waste sites to seek monetary contribution from other parties who are also responsible for the contamination.” Appellate court reversed district court, concluding plaintiff did not “resolve[ ] its liability” under the 1998 RCRA Decree and could not have brought its contribution action in 1998, and the statute of limitations did not begin to run with entry of the 1998 RCRA Decree.” Remanded.

PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, et al., Plaintiffs, v. David MURILLO, Regional Director of the United States Bureau of Reclamation, United States Bureau of Reclamation, and San Luis & Delta-Mendota Water Authority, Defendants, No. 2:11-cv-02980-KJM-CKD, 2017 WL 3421910 (E.D. Cal. August 9, 2017) concerned whether defendants violated the Clean Water Act by discharging pollutants into the waters of the United States without a required National Pollutant Discharge Elimination System (NPDES) permit. Court considered whether defendants’ operation of a Grasslands Bypass Project is exempt from an NPDES permit under the “return flow from irrigated agriculture” exemption. On appeal, plaintiffs argued lower court erred when it determined plaintiffs’ seepage and sediment theory fell outside the operative complaint. Court denied plaintiffs’ motion to reconsider and observed that, “Given the various sources of pollution, it was not clear error for the court to conclude this sediment did not accumulate from, or itself constitute, contaminated groundwater “from parcels where no farming occurs.”

In Arlin George HATFIELD, III v. The BOARD OF SUPERVISORS OF MADISON COUNTY, Mississippi, NO. 2016–CP–00616–SCT, 2017 WL 3452426 (Miss. August 10, 2017), plaintiff was raising chickens and county board of supervisors found him in violation of a zoning ordinance. State Supreme Court considered the ordinance “which did not expressly permit raising and keeping fowl in residential neighborhoods.” Court observed that, “[I]n construing a zoning ordinance, unless manifestly unreasonable, great weight should be given to the construction placed upon the words by the local authorities.” Court found plaintiff had “sufficient notice” that keeping or raising chickens on residential property was prohibited and affirmed board decision.

IN RE ESTATE OF CORA H. ETMUND, DECEASED. JEAN HOLUBAR ET AL., APPELLANTS, v. CHERYL A. BROWN, PERSONAL REPRESENTATIVE OF THE ESTATE OF CORA H. ETMUND, DECEASED, APPELLEE, No. S-16-804, 297 Neb. 455 (Neb. August 11, 2017) concerned whether the personal representative of an estate should be removed. The deceased’s will directed the personal representative of her estate to provide the current farm tenant with the first opportunity to purchase the subject property “under commercially reasonable terms and conditions as he and [deceased’s] personal representative may agree.” Appellee hired a certified appraiser, who valued the subject property at $785,859 based on its agricultural use. Petitioners, devisees under the will, argued a sale at that price “was not in the best interests of the estate” because their appraiser valued the land at $1,457,000 based on the “highest and best use” for the property. Petitioners filed petition for removal, but State Supreme Court denied petition.

In BC RANCH II, L.P., also known as Bosque Canyon Ranch II, L.P.; BC RANCH I, INCORPORATED, Tax Matters Partner, Petitioners – Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent – Appellee, BOSQUE CANYON RANCH, L.P.; BC RANCH, INCORPORATED, Tax Matters Partner, Petitioners – Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent – Appellee, No. 16-60068, (5^th Cir. August 11, 2017), petitioners claimed Commissioner of Internal Revenue wrongfully disallowed their charitable deductions for two conservation easements. They argued that in ruling for the Commission, Tax Court “wrongfully classified the sale of limited partnership interests as disguised sales and wrongfully imposed a gross valuation misstatement penalty.” Appellate court reasoned “the values of the easements themselves present a question that is entirely different from the partnerships’ entitlement to a charitable deduction for the easements.” Court concluded the Tax Court’s “hyper-technical requirements for baseline documentation, if allowed to stand, would create uncertainty by imposing ambiguous and subjective standards for such documentation.” Case vacated and remanded.

REGULATORY: Includes AMS, FWS, FDA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS will take Official Notice of documents related to the California Federal Milk Marketing Order rulemaking proceeding. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS received an application from Mr. Steven McLain for an Incidental Take Permit (ITP) pursuant to the Endangered Species Act. Info here.

Notice FWS announces a public teleconference of the Wildlife and Hunting Heritage Conservation Council. Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is announcing the availability of a guidance for industry entitled “Ultrafiltered Milk in the Production of Standardized Cheeses and Related Cheese Products: Guidance for Industry.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS closes the northern area Angling category fishery for large medium and giant Atlantic bluefin tuna. Info here.

Rule NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean because the fishery has reached the 2017 catch limit. Details here.

Notice NMFS announces a public meeting of the Permanent Advisory Committee to advise the U.S. Commissioners to the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean on September 12, 2017. Info here.

Notice NMFS received an application from Virginia Electric and Power Company, D.B.A. Dominion Virginia Power, for an incidental take permit for activities associated with the otherwise lawful continued operation and maintenance of the Dominion Chesterfield Power Station in Chesterfield, VA. Info here.

Notice NMFS received a request from Navy for authorization to take marine mammals incidental to the training and testing activities conducted in the Atlantic Fleet Training and Testing Study Area from October 2018 through October 2023. Details here.